Wilund v. New York Central & Hudson River Railroad

Majority

p. 904

Anna Wilund, as Administratrix, etc., of Charles Wilund, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

Headnote

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 14tli day of March, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the same day denying a motion for a new trial.

We think that the judgment and order should be reversed and a new trial granted, costs to abide the event, on' the ground that the ver diet is against the weight of evidence on the questions of the defendant’s negligence and the decedent’s freedom from contributory negligence. We think, also, that the evidence on the question of negligence on the part of Johnson ivas not sufficient to require submission of said question to the jury, and that it was likewise serious error to submit to the jury the question of wanton and reckless conduct on the part of the motorman. Jenks, P. J., Thomas, Carr and Rich, JJ., concurred; Woodward, J., concurred on the ground that the verdict was against the weight of the

p. 905

evidence. Judgment and order reversed and new trial granted, costs to abide the event. _